Examining the Federal Pursuit of Harvey Weinstein

While few would voice concern over the well-being of the notorious former Hollywood producer Harvey Weinstein, the recent news that federal authorities have chosen to join the multiple legal proceedings involving Weinstein raises concerns that transcend the fate of this individual.

By Connecticut Editorial Board|September 21, 2018 at 12:21 PM

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Harvey Weinstein, center, listens during a court proceeding in New York during his arraignment on rape and other charges. (Photo: Steven Hirsch/New York Post via AP, Pool)

The ability of the criminal justice system to handle high-profile cases involving reviled figures reflects its strengths or weaknesses. While few would voice concern over the well-being of the notorious former Hollywood producer Harvey Weinstein, the recent news that federal authorities have chosen to join the multiple legal proceedings involving Weinstein raises concerns that transcend the fate of this individual.

As recently reported by the Wall Street Journal (Sept. 1, 2018), federal prosecutors in the Southern District of New York are investigating the efforts of Weinstein to silence women who accused him of acts of sexual misconduct. The investigation apparently focuses on the measures taken by an Israeli investigative firm, Black Cube, who was retained in 2017 by the prominent New York law firm, Boies Schiller Flexner, counsel for Weinstein at the time. The potential federal offense involves allegations of wire fraud.

Previous reports by the WSJ indicated that the federal prosecutors are also examining whether any women were caused to travel across the state lines for the purpose of Weinstein committing a sex crime, another potential federal crime. Finally, the WSJ reported that the federal fraud charges could serve the purpose of a “backstop” should the New York state criminal cases falter.

As a matter of constitutional law, federal criminal prosecutions should be limited to federal crimes. Weinstein is accused of committing two sexual assaults by the People of the State of New York against two separate victims. In the overwhelming majority of cases, these types of prosecutions are handled by state authorities, regardless of possible results. It would certainly be unusual for federal authorities to initiate a separate prosecution solely to serve as a legal “backstop” to a state prosecution.

If the state prosecution fails it should not be the role of the federal authorities to provide a legal safety net for the state of New York merely because Weinstein is a nationally despised figure. Unfortunately for Weinstein, federal jurisdiction can be created on a flimsy basis. Allegations of wire fraud require for jurisdictional purposes an effect on interstate commerce. However, that effect can be de minimis for the federal court to obtain jurisdiction. The use of a device to communicate the wire fraud which was manufactured in part in interstate commerce will meet that nominal threshold.

The question arises as to why this federal investigation was launched. The obvious explanations abound: high-profile case; to exert pressure on Weinstein to resolve his New York cases; career enhancement; lack of confidence in state court prosecutors and system; political ambitions; and moral indignation at Weinstein’s behavior. But perhaps the most compelling is, for all of the adverse publicity about Weinstein, substantial concern regarding the merits of the state court case. Is it a coincidence that the awareness of this federal probe comes after the disclosure of communications between Weinstein and one of the alleged victims that would appear to be significantly inconsistent with an allegation of sexual assault?

Whatever Weinstein’s legal fate will be, and many understandably wish to see him severely punished, it should be adjudicated in state court where these types of case are routinely addressed not in federal court for a manufactured crime. The core of the accusations against Weinstein are sexual assault not wire fraud. We should not have a system whose regular method of operation is contorted because of the notoriety of a defendant. “Backstops” should be limited to baseball.

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